Today in United States v. Palomar-Santiago, --- F.3d ---, No. 20-437 (2021), the Supreme Court overruled longtime Ninth Circuit precedent in the 1326(d) context.
Section 1326(d) provides:
“In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order . . . unless the alien demonstrates that— “(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; “(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and “(3) the entry of the order was fundamentally unfair.” 8 U. S. C. §1326(d).
Under Ninth Circuit law, until today, defendants were “excused from proving the first two requirements” of §1326(d) if they were “not convicted of an offense that made [them] removable.” For instance, if the person was removed for an offense that the IJ thought was an aggravated felony, but it was not actually an aggravated felony, the first two requirements were satisfied.
The Supreme Court rejected this interpretation: "The Ninth Circuit’s interpretation is incompatible with the text of §1326(d)."
The Court continued: "the substantive validity of the removal order is quite distinct from whether the noncitizen exhausted his administrative remedies (by appealing the immigration judge’s decision to the BIA) or was deprived of the opportunity for judicial review (by filing a petition for review of a BIA decision with a Federal Court of Appeals)."
"The Court holds that each of the statutory requirements of §1326(d) is mandatory."
So, for 1326(d) motions going forward, if your client did not exhaust, this is going to be a problem. But don't miss footnotes 2 and 4:
Footnote 2 says:
Palomar-Santiago separately argues that the offense defined by §1326(a) includes as an element the defendant’s previous lawful removal such that unlawful removals cannot support a conviction. United States v. Mendoza-Lopez, 481 U. S. 828, 834–835 (1987), rejected a similar argument with respect to the pre-AEDPA version of §1326(a). Palomar-Santiago now presses various distinctions between that case and this, but the Court declines to address his arguments, which were neither raised below nor fairly encompassed by the question presented to this Court. See Brownback v. King, 592 U. S. ___, ___, n. 4 (2021) (slip op., at 5, n. 4).
Footnote 4 says:
Thus, these arguments are still available.Palomar-Santiago argues that “a scheme that permits the results of an administrative proceeding to conclusively establish a criminal offense” raises “due process and separation of powers problems,” which are “heightened when . . . the agency never had the authority to issue the order in the first instance.” Brief for Respondent 15. The parties also strongly disagree about the sufficiency of the paths available for noncitizens to obtain review of prior removal orders outside of an illegal reentry prosecution. To the extent Palomar-Santiago raises freestanding constitutional claims on these bases, they were not raised below and are outside the scope of the narrow question this Court granted certiorari to decide.
